Fifty percent of black men have been arrested. This is an appalling stat if you contemplate it. It is deplorable that we allow this to continue. Our failure to examine why this occurs strikes at the soul of our nation. Allow me to submit to you that we do not ignore this stat, but we embrace it because it feeds into the myth that we have told ourselves: that black people did better with slavery. 50 percent of black men arrested is not a flaw in the system, it is by design.
I too was almost arrested when I was 39 years old. My infraction? I believed that same-sex couples, in the state of Arizona, had the same privacy right that my wife and I enjoy in our medical records. The Honorable Bradly Soos disagreed with me and forced me to defy his flawed order to make my client testify about the contents of his personal private counseling records. This was before marriage equality was the law of the land. This was when Republicans ran on amending the Constitution to deny same-sex couples the right to marry and Democrats' virtue signaled that they believe in the traditional definition of marriage. It was the time when gays and lesbians yearned to marry the person they loved and desperately wanted someone to fight for them and politicians kept telling them to wait. It was in this context that I remember getting the Judge’s ruling and reading it and hearing Chuck D’s voice in my head: it said he was a sucker.
I was born in 1975. I was raised in a Christian household. I have never heard either of my parents say any swear words in my life. They are alive in their mid to late 80s. However, it was perfectly acceptable, in my formative years, to disclaim something as being gay. If we did not like someone we were allowed to call that person two homophobic slurs beginning with f. This was not just my home, this was the community. This was the kids' shared lexicon in the idyllic town I grew up in.
I was a high school wrestler on one of the best teams in the nation. Since I was one of the lightweights, people were looser with their tongues if they outweighed me by 45-plus pounds. Even then, I might not accept their disrespect. Nonetheless, any whisper that a wrestler was gay was met with containment and forced separation from the team. Not during the season, but afterward. They were frozen out. It does not matter if they were JV or a state champ. Any allegation of someone being gay and they were no longer welcomed in our fraternity. Those were the rules.
I attended a college in rural Iowa. A college of about 2,000 in a town of about 5,000. To be gay here was to be ostracized. Your very safety was at risk. This was the early and mid-90s. We were all still dealing with the fallout from AIDS. Gay bashing was something that had just entered the zeitgeist. I would later learn one of my suitemates was gay and his college girlfriend a lesbian. It was during this period of time that I started to shed some of my homophobia. Not by meeting anyone or reading anything in particular, but hating someone because they were different was hypocritical to me. It was small-minded and in college, I wanted to be more than who I was when I entered.
It was not until I went to law school that I was educated by gay men. I remember watching the Dean of students walk one day. He was a brilliant and kind man. He was in a domestic partnership and he and his partner had adopted a boy and a girl. I remember him just walking by and I realized that he and his partner could provide a better home than most people could ever get. I thought to myself, it was stupid for me to think that gay and lesbian people were not worthy or deserving of being able to marry the person they loved, adopt children, or obtain housing or employment because of whom they choose to love. It was at that moment that I was no longer actively homophobic. I was 22 years old.
I have banished all homophobic slurs from my vocab. The 90s hip-hop I came to age listening to is so cringe not just because of the rank homophobia, but the amount of misogyny contained in these songs is depressing and infuriating.
I think the only gay author that I have read is James Baldwin. I watched innocuous gay television shows like Will and Grace. I reconnected with my suitemate and him and his various boyfriends would come over to my house for dinner. By the time I was in my late 30s I was not homophobic. I believed in gay marriage, and that gay people should be able to adopt children. However, I do not consider myself having any gay friends at this time. I saw classmates from college and high school had come out since I had last seen them. I monitored their Facebook feeds to see the life they created for themselves. Even my former suitemate who dined in my home on occasion, I would not consider a friend. He was more like a friendly acquaintance that I was very fond of.
I tell you this to provide context to the story. When I stood up against a horrible ruling by a Judge I was doing what was right because it was right. I did not have any gay or lesbian friends that I spoke to often on the phone. I was not doing this because I wanted to improve the lot in life for a specific person, even my client. I was doing this because there was injustice in that courtroom and that injustice was a threat to justice everywhere in my state. I fought back because I hope one day someone would fight back for me.
I quickly filed my motion for reconsideration. He denied it. I then traveled from Phoenix to Florence Arizona. A city whose major industries are prisons (both state-run and private), and agriculture. This was not Maricopa County, the fifth largest county in the United States of America, this was Pinal County. A rural county and at one point the meth-capital of the world. It is a two-hour drive to Florence from my home. A journey that sent you through desolate Native American reservations. Giant open spaces, came to crashing halts when they collided with the mountains that jetted up from the Earth to encapsulate this desert landscape. Cacti and tumbleweeds and the occasional motor vehicle were all that kept me company on my drive. I arrived at 9:30 in the morning so that I could make sure the Judge ruled on my motion for reconsideration. I could not file my appeal/special action until he denied my motion.
He was hearing his criminal calendar that morning. I was dressed in business casual attire because my only mission was for him to issue a ruling before I filed my appeal (technically a request for special action relief). I wore a long-sleeve button-down collared shirt, khakis, and brown split-toe leather lace-ups with dolphin soles. I was the only black person in the gallery. When the Judge came in to hear the criminal matter, he automatically assumed that I was the criminal defendant, based on the color of my skin. After he was rebuffed by the prosecutor, the criminal defense attorney — whose client’s name was something like Ricardo Lopez — and me, he did not apologize for this racist defamation. Instead, he eagerly conducted the business and then scurried off the bench. I sent the bailiff to ask about the status of my motion, which of course he denied.
“Here is a land that never gave a damn
About a brother like me and myself
Because they never did
I wasn’t wit’ it, but just that very minute
It occurred to me, the suckers had authority.” — Black Steel In The Hour of Chaos by Public Enemy.
Not only had his ruling put our same-sex couples in peril, but he had also aggrieved me. This snap judgment gave me greater insight into the possible motives to make such a poor ruling. I pulled an all-nighter to file this special-action appeal with the Appellate Court because my client’s deposition was the next week.
The Appellate Court had not ruled on my request for a stay by the morning of the deposition. If my client testified about these records then he waived his privacy rights in these records. The defendant, in this case, was my client’s and his partner’s therapist. To be vindictive she provided these counseling records to his partner who read them. Imagine if your spouse or loved one read your private thoughts about them over a course of five years how angry, humiliated, embarrassed, and distraught they would be. That is how my client’s partner was. My client was mortified. Yet, somehow they summoned the love to band together and direct their fury at the one person who had violated the sanctity of their relationship: the therapist.
Judge Soos had made himself perfectly clear what the consequence was for denying his order. With that in mind, I woke up that morning after a listless sleep. I showered, shaved, and put on a navy suit, my most comfortable socks, and shoes, with the thought that I might be incarcerated that day. I had no appetite that morning. My daughter was five months old. I held her. I sang to her. I kissed her goodbye, not knowing when I would see her again. I concealed my inner turmoil from my wife. I tried my best to act like nothing was wrong. Yet, I was terrified when I kissed her and headed out the door.
You see that is the thing that is not discussed enough. Doing the right thing, even when you know it is the right thing is terrifying. The malicious therapist was not facing jail time for illegally providing my client’s records to his partner without a court order, HIPPA release, or any other authority. She did not face jail time, I did. My client did, not her: the person who caused the harm.
In order to make the arc of the moral universe bend toward justice, I had to put my body on the line. If I willfully denied a court order my bar license was in jeopardy not just for Arizona but California as well. How I provided for myself and my family was at risk. I would have been incarcerated in a Pinal County Judge until I allowed my client to testify. Doing the right thing is taxing and it takes a toll on you in a world that is motivated and incentivized to do the wrong thing.
“Decency was deserved
To understand my demands
I gave a warnin’, I wanted the governor, y’all” — Black Steel In The Hour of Chaos by Public Enemy. — Black Steel In The Hour of Chaos by Public Enemy.
Black, white and Jewish Freedom riders were beaten bloody for making the Constitution live up to its meaning, not the thugs sanctioned by the state to administer the beatings. Disability activists were arrested for demonstrating how they were been excluded from the broader world because it was not accessible, not the architects and builders who designed and constructed these buildings. It was the Lovings who were arrested for marrying the person they loved and living as husband and wife, not the Judge who ruled hate was the law of the land.
I have watched Republicans in my state, who I fundamentally disagree with, become pariahs in their own Party. The only thing we agree on is: the 2020 election was not stolen from former President Trump. This line of thinking in today’s Arizona GOP is heresy. One who espouses such views will be branded as a RINO and removed at any expense from the Party. Resources that could go to winning more seats are purposely sacrificed to get rid of someone who holds these apostate views. Even though this heretic holds every political position as the Party, this failure to participate in The Big Lie gets you ex-communicated and removed from office.
These Republicans are still bigots. They are still racists. They still hate brown immigrants and asylum seekers. They still favor forced birth. They prefer the rich over the poor. They hate public education. They still love all cops, even the Capitol Police. In their world All Lives Matter. Their break from orthodoxy is that the 2020 elections were safe, transparent, and fair. The courage to adhere to the reality that all nonpartisans know to be true robs you of your identity as a Republican in my state. Doing what is right has consequences while knowingly spreading baseless lies has not resulted in any comeuppance for any of these deceivers. Doing what is right comes with a price.
“This is what I mean, an anti-nigger machine
If I come out alive and then they won’t, come clean” — Black Steel In The Hour of Chaos by Public Enemy.
I hated this judge for being so obtuse and recreant in his administration of justice. For his daftness, I would have to suffer. I was afraid, so on the drive to meet with my client I called my legal friends and put in place a plan of action to get myself bailed out, if even possible. I waited until I went a mile away from my home before I pulled onto a side street and stopped my vehicle. I used a Sharpie to write all of the necessary phone numbers I would need, if I was incarcerated, on my forearm. I made sure that someone would be able to provide respite for my wife if I was placed in jail. I had a sense of dread as I drove to the airport to get my client.
When I saw him and we exchanged small talk, the fire of righteousness started to burn bright. I was his advocate and he believed in me. He and his partner had girded themselves for this battle. This act of defiance was a proclamation that their love was pure and not perverse. Their relationship was worthy of dignity and not a vessel of division. He was committed to our course of action and I was emboldened.
We retreated to a Starbucks near the Defendant’s lawyer's office. I had known this attorney for almost eight years at this time. We were not enemies, but he would allow me to be jailed for denying the Court’s order. Perhaps, because his license was at risk for disclosing these records without HIPPA authorization, consent from my client, or a judicial order. A lot was at stake for everyone involved.
The time had come and we left Starbucks caffeinated, steeled in our conviction that what was going to happen was going to happen. When we walked into the large and well-appointed conference room, the court reporter was there with the various defense attorneys as well as my client’s partner’s attorney.
My client was sworn in and the deposition began. The defense attorney started with the general background information. This lasted for about 30 minutes. Then he asked my client to testify about his private and stolen medical records. With as much conviction as I possessed, I objected and instructed my client to not answer the question. The attorney said, I am not going to fight with you about this, you know where I stand. I am going to complete what I can and then we are going to get the judge on the phone.
My courage was now depleted. I had set the events into action and I had to be willing to accept the ramifications of my judicial rebellion. It was reminiscent of my childhood and my mother instructing me to wait until my father gets home from work to mete out my punishment. I already knew what Judge Soos was going to say. I knew what the implications were for denying his order. I sat in my chair waiting for my looming reckoning.
Then the phone rang, it was the Appellate Court. They wanted to have oral argument on my motion to stay the deposition. If we won this motion, then the Court would hear my appeal/special action. Further, my client and I would not be in contempt of court. We stopped the deposition. We all crammed around a speakerphone in a different conference room. I gave the most impassioned presentation of evidence and law in my life that morning to the Appellate Judge. I was in a zone. I have no recollection of what I said. The therapist's attorney gave his argument, then my client’s partner’s attorney gave his. Finally, the other defendant’s attorney abstained. I suspect, he knew what the therapist did was wrong. He did not want to be on record supporting the notion that same-sex couples do not have the same privacy rights as non-same-sex couples in their medical records. I respected him for his position.
The Judge ruled in my favor. I was relieved. I was beaming with pride and joy. We then went back to the other conference room and concluded the deposition. I said goodbye to my client as he had made other transportation arrangements. I drove home in silence and filled with gratitude. I gave my wife the biggest kiss when I found her. I played with my daughter for the rest of the evening. I mixed to Vespers and greedily drank the first one and savored the second one as I smoked a cigar on the balcony.
Five months later the Appellate Court would rule and establish that same-sex couples have the same rights in their counseling records as everyone else. A couple of months later, SCOTUS would make marriage equality the law of the land.
Now I have gay friends, lesbian friends, and trans friends that I talk to on the phone, grab dinner with and attend weddings with. My world has opened up so much more as a result of this case. Not professionally, I rarely speak about this case, because I felt like a coward at its darkest moment. I have these friends because I became involved in Democrat politics. I became proximate to people who love and exist differently from me. When you become proximate to people your world can be transformed, mine was. It is now more vibrant and enriching than it was before.
I almost went to jail, because of systemic bigotry coded into our law. I was terrified, even though I knew I was on the right side of history. I think I wrote this because I think too many of us ignore the peril of doing what is right. It is fully understanding and embracing that the path of righteousness is besieged with peril and littered with hardship. Vindication for your resolute stance might not come in your lifetime or come too late. The material repercussions of your actions might eclipse the tangible benefits that are afforded to you. Yet, the psychic income of doing and knowing what is right is immeasurable.
This post originally appeared on Medium and is edited and republished with author's permission. Read more of Garrick McFadden's work on Medium.